Appeal from the District Court of the Virgin Islands of the United States, Subofficial District of St. Thomas and St. John.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
BUFFINGTON, Circuit Judge.
At the threshold of this case, an appeal from a criminal conviction in the United States court in the Virgin Islands, we are confronted by a conflict between two branches of the United States government, to wit, the Department of the Interior and the Department of Justice. The Department of the Interior appears before us, by its Solicitor, and, confessing error, asks that the judgment below be vacated and the convicted man discharged. On the other hand, the Department of Justice appears by its Assistant Attorney General, and asks that if this court has jurisdiction in this appeal, the judgment below be affirmed. Both sides have been heard on this question of territorial control. In our judgment, we are relieved from deciding that delicate question by the President of the United States, who has issued an executive order as follows: "The United States Court for China, the District Court of the United States for the Panama Canal Zone, and the District Court of the Virgin Islands of the United States are transferred to the Department of Justice."
This order establishes the control of the Department of Justice. Assuming, for present purposes, this court has jurisdiction over the appeal, we pass on to the merits.
In this case it appears that Leonard Walter McIntosh, hereafter called appellant, contends he was unjustly convicted and sentenced in the court below on three counts of an indictment charging him with violation of section 46, chapter 10, title 4, of the Code of the General and Special Laws of the Virgin Islands for the Municipality of St. Thomas and St. John, which provides: "Every person who knowingly and designedly, by false or fraudulent representation or pretenses, defrauds any other person of money or property, is punishable in the same manner and to the same extent as for larceny of the money or property so obtained."
On entry of a judgment that he pay a fine of $200, he took this appeal.
A study of the record shows the appellant was chief clerk or chief bookkeeper of the local Department of Public Works. In the spring of 1934, he was building a house for himself and a public garage, and ran out of needed material. As he then owed the Lockhart Lumber Yard several hundred dollars and he was apprehensive it would not give him more credit, he resorted to getting the needed lumber from the Public Works Department of the Island. His method of doing so is thus stated by himself:
"My carpenters were working, I do not remember whether it was ceiling, the parlor or the dining room, and they ran out of ceiling lumber and as I had owed Lockhart quite a lot of money, I do not remember how much but around that time it was close to $700.00 or $800.00 and I could not see my way to keep on purchasing to make my house a bit more comfortable. The idea just struck me that why not get a couple hundred feet of ceiling lumber from the lumber yard and charge it to the Public Works Department. This I did in the following manner:
"I accordingly issued a requisition on Lockhart's Lumber Yard and sent a Requisition to the Lumber Yard.
"Q. By whom did you send the requisition? A. I do not remember. But I remember this that I called a truck, which driver's truck number I also do not remember, but I called a Government truck and sent it to the lumber yard and told them to fetch me the lumber from the lumber yard to my home. The quantity of lumber, I do not remember, but I do not think it was in excess of 500 feet -- I do not think so. It was rush time, working night and day so I was hard-pressed.
"Q. This lumber, you say Mr. McIntosh, was ordered from Lockhart's Lumber Yard on a regular requisition form of the Public Works Department, and signed by you? A. Yes.
"Q. This lumber, however, never reached the Public Works Department, but went direct, according to your instructions, to your house via the Public Works truck. Is that correct? A. That is correct.
"Q. Mr. McIntosh, when did this happen? A. I cannot exactly remember the month. If you have any information I would appreciate your refreshing my recollection. (Mr. Baer then read to Mr. McIntosh the statement dated July 6, 1934, signed by Alphonse Callwood and remarked that the time was about March of this year and after reading this statement Mr. McIntosh ...